ICJ judges to cease acting as arbitrators

On 25 October 2018, the President of the International Court of Justice, H.E. Mr Abdulqawi Yusuf, addressed the United Nations General Assembly. Judge Yusuf spoke about the progress of the Court’s judicial activities over the previous year and also announced that ICJ judges would no longer be permitted to sit as arbitrators (other than in certain, limited circumstances).

ICJ judges have historically been able to accept appointments to sit as arbitrators while also continuing their functions for the Court. However, as Judge Yusuf explained to the General Assembly, the ICJ has recently instituted new procedures which severely curtail this ability. In particular, ICJ judges will no longer be able to accept appointments to sit as arbitrators in either investor-State or commercial arbitral proceedings.

ICJ judges remain able to participate in inter-State arbitrations in exceptional cases and subject to various restrictions. In particular, ICJ judges will need to obtain prior authorisation before accepting any such appointments and will only be permitted to participate in one arbitration procedure at a time. Further, judges will be required to decline appointments by any State that is a party in a case pending before the Court, even if there is no substantial interference between that case and the case submitted to arbitration. Finally, any participation will be subject to the strict condition that their judicial activities take absolute precedence.